SUMMARY LAWSKOOL PTY LTD
Contents THE NATURE OF EVIDENCE AND PRELIMINARY ISSUES...8 SOURCE OF EVIDENCE LAW AND APPLICATION...8 Criminal versus civil proceedings...8 General structure of the Evidence Act...9 FACTS WHICH CAN BE PROVED WITHOUT EVIDENCE...11 Waiver of rules of evidence...11 Agreed facts and admissions...11 PRELIMINARY QUESTIONS...12 ADDUCING EVIDENCE...12 TYPES OF EVIDENCE...12 1. Testimony evidence oral evidence from witnesses...12 Identification Evidence...23 2. Documentary Evidence...25 3. OTHER EVIDENCE REAL EVIDENCE AND VIEWS...27 PROOF...29 BURDEN AND STANDARDS OF PROOF...29 The legal burden of proof...29 The evidential burden of proof...30 Standards of proof...30 PRESUMPTIONS, INFERENCES AND JUDICIAL NOTICE...31 Presumptions under common law...31 Presumptions under the Act...31 Inferences...32 Judicial notice...32 JURY DIRECTIONS...34 Inferences from the absence of evidence the rule in Jones v Dunkel...36 Jury warnings about unreliable evidence...36 Common law warnings...37 Jury directions regarding standard of proof in criminal proceedings...37 ADMISSIBILITY OF EVIDENCE...39 GENERAL STRUCTURE OF ENQUIRY AS TO ADMISSIBILITY OF EVIDENCE...39 RELEVANCE...42 lawskool.com.au 2
THE HEARSAY RULE AND ITS EXCEPTIONS...43 Exception under section 60: evidence relevant to a non-hearsay purpose...44 First hand hearsay: criminal proceedings if maker not available...45 First hand hearsay representations which are fresh in the memory...47 Remote Hearsay Exceptions: Business Records...48 Contemporaneous statements about a person s health, feelings, sensations, intention, knowledge or state of mind: section 66A...49 Hearsay in other types of proceedings...49 SECTION 75 STIPULATES THAT HEARSAY PROVISIONS DO NOT APPLY TO EVIDENCE IN AN INTERLOCUTORY PROCEEDING IF THE PARTY WHO ADDUCES IT ALSO ADDUCES EVIDENCE OF ITS SOURCE THE OPINION RULE AND ITS EXCEPTIONS...49 Lay Opinion...50 Expert Opinion Evidence: section 79...50 ADMISSIONS...53 Admissions made in the course of official questioning...54 The situation and circumstances surrounding the admission...55 Section 90 discretion to exclude admissions...55 TENDENCY AND COINCIDENCE EVIDENCE...56 The Tendency Rule: section 97...57 The Coincidence Rule: section 98...58 Criminal proceedings and tendency and coincidence evidence...59 THE CREDIBILITY RULE AND ITS EXCEPTIONS...59 Interpretation of the credibility rule...60 Exceptions to credibility: cross-examination...61 Cross-examination of the accused...62 Character evidence about a defendant...62 Rebutting denials by other evidence...62 SECTION 135 GENERAL DISCRETION TO EXCLUDE EVIDENCE...64 Unfairly prejudicial...64 Misleading or confusing...65 SECTION 136 GENERAL DISCRETION TO LIMIT THE USE OF EVIDENCE...65 SECTION 137 EXCLUSION OF PREJUDICIAL EVIDENCE IN CRIMINAL PROCEEDINGS...66 SECTION 138 IMPROPERLY OR ILLEGALLY OBTAINED EVIDENCE...67 What does improperly mean?...67 Factors the court can take into account in balancing the considerations...68 SECTION 192 DISCRETION TO GIVE LEAVE...69 PRIVILEGE...70 lawskool.com.au 3
CLIENT LEGAL PRIVILEGE...70 RELIGIOUS CONFESSIONS...71 PRIVILEGE RELATING TO SELF-INCRIMINATION IN OTHER PROCEEDINGS...71 PUBLIC INTEREST EXCEPTIONS...72 lawskool.com.au 4
Cases Adam v The Queen...21, 42, 61 Allstate Life Insurance Co v ANZ Banking Group Ltd (No 5)...50 ASIC v Vines...52 Azzopardi v The Queen...35 Brown v Dunn...22 Commissioner for Railways (NSW) v Young...25 Coulstock...67 Daubert v Merrell Dow Pharmaceuticals...51 Dhanhoa v The Queen...25 Dragan Cvetkovic v R...48 Dyers v The Queen...36 Foster v The Queen...56 Gillett v Murphy...29 Graham v The Queen...47, 63 Green v The Queen...37 HG v The Queen...51 Howlett v Budd...38 Jacara Pty Ltd v Perpetual Trustees WA Ltd...58 Jones v Dunkel...36 Jones v The Queen...37 Jones v Toben...33 Kelly v The Queen...54 La Fontaine v R...37 Lee v Burn...31 Lee v The Queen...44 LS v DPP...15 Makita (Australia) Pty Ltd v Sprowles...52 Mark Raymond Pollard v R...66 NAB v Rusu...26 Nezovic v Minister for Immigration and Multicultural and Indigenous Affairs (No 2)...27 Papakosmas v The Queen...42, 65, 66 lawskool.com.au 5
Pollitt v The Queen...37 R v Adler...24 R v Barbaro...48 R v BD...65 R v Butera...52 R v Dalley...68 R v DGB...37 R v Gee...48 R v Hodge...38 R v Hogan...21 R v Leung...52 R v Lockyer...58, 62 R v Lozano...20 R v Magoulias...33 R v Munce...55 R v Rose...24 R v RPS...62 R v Sophear Em...56 R v Stewart...36 R v Suteski...46 R v Swaffield...56 R v Taylor...55 R v Vinh Le...47 Reading v ABC...65 Shepherd v The Queen...38 Smith v the Queen...42 Stanoevski v The Queen...69 Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd...53 TKWJ v The Queen...69 Townsend v Townsend...58 W v The Queen...59 Wakeley v The Queen...19 Weissensteiner v The Queen...35 Williams v The Queen...46 lawskool.com.au 6
Wojcic v Incorporated Nominal Defendant...23 WSJ v R...48 lawskool.com.au 7
The nature of evidence and preliminary issues The laws of evidence consist of the rules and principles applied by courts in the process of fact-finding at a trial. The facts in issue are those that the plaintiff or prosecutor and the defendant or accused must ultimately prove in order to be successful. 1 To determine what the facts in issue are, first look at: 1. the substantive rules of law; 2. the pleading (in civil cases) or the charge and plea (in criminal cases); and then 3. the manner in which the case is conducted. SOURCE OF EVIDENCE LAW AND APPLICATION Evidence is determined by both the common law and the various evidence statutes in existence. 2 Every State and Territory is now a uniform evidence legislation jurisdiction and is governed by evidence legislation that reflects the Evidence Act 1995 (Commonwealth). We use the Evidence Act 1995 (Commonwealth) [herein referred to as Evidence Act ] as the model for our summary. Note that the Evidence Act applies only to matters within federal jurisdiction. 3 Criminal versus civil proceedings Note that certain provisions of the Evidence Act will only apply to criminal proceedings. For the purposes of the Evidence Act, a criminal proceeding is a prosecution for an offence including bail hearings, committal hearings, and sentencing. A civil proceeding is anything other than a criminal proceeding. 1 P Waight and B Williams Evidence Commentary and Materials Sixth Edition. Lawbook Co. Casebook. 2002 Pyrmont NSW. 2 Evidence Act 1971 (ACT); Evidence Act 1995 (NSW); Evidence Act 1939 (NT); Evidence Act 1997 (Qld); Evidence Act 1929 (SA); Evidence Act 2001 (Tas); Evidence Act 2008 (Vic); Evidence Act 1906 (WA). 3 However, note that section 4 of the Evidence Act 1995 (Cth) states that the Act applies to all Federal Courts and tribunals as well as courts of the Australian Capital Territory. Section 8 provides that the Act does not affect the operation of any legislation or regulation in force in the ACT, including the Evidence Act 1971 (ACT). Note also that section 5 provides a table of certain sections that have extended application to all proceedings in an Australian court. lawskool.com.au 8
Criminal provisions only: Section 17 competence and compellability of defendants in criminal proceedings; Sections 18 and 19 - competence and compellability of spouses in criminal proceedings; Section 20 comment on failure of criminal defendant to give evidence; Section 33 evidence given by police officers in criminal proceedings; Sections 65 and 66 first-hand hearsay in criminal proceedings; Section 85 reliability of admission by criminal defendants; Sections 86, and 89 90 information obtained in the course of official questioning; Section 101 further restrictions on tendency and coincidence evidence tendered by prosecution; Section 104 cross-examination of the accused; Parts 3.8 and 3.9 character and identification; Section 137 judicial discretion to exclude prejudicial evidence; Section 141 criminal standard of proof; and Section 184 admitting facts by accused. General structure of the Evidence Act The general structure of the Evidence Act is as follows: Adducing evidence: providing materials in a court to prove or disprove a fact in issue. The types of evidence that can be put before a court are: oral testimony of a witness; documentary evidence; and real evidence. o Part 2.1: Witnesses; o Part 2.2: Documents; o Part 2.3: Other evidence Admissibility of evidence: conditions for admissibility of the evidence and the restrictions on what evidence can be considered. Only evidence relevant to a proceeding and complying with the other rules of evidence is admissible in a lawskool.com.au 9
proceeding. 4 Relevance is the most important aspect and starting point of the law of evidence, as if evidence is considered irrelevant it will be inadmissible without the need to consider the other rules. o Part 3.1: Relevance; o Part 3.2: Hearsay rules; o Part 3.3: Opinion rules; o Part 3.6: Tendency and Coincidence rules; o Part 3.7: Credibility rules; o Part 3.8: Character rules; o Part 3.9: Identification evidence rules; o Part 3.10 Privileges; o Part 3.11: Discretions to Exclude. Proof: the evidence is adduced as proof as the legal practitioner must prove the case to the court. Proof includes the notion of standard of proof, which is an objective measure for determining whether or not a fact or issue has been proved. 5 In criminal proceedings, the standard of proof is beyond reasonable doubt, whereas in civil proceedings the standard of proof is on the balance of probabilities. The onus of proof is on the party who asserts the case, that is the prosecution in a criminal case and the plaintiff in a civil case. o Part 4.1: Standard of proof; o Part 4.2: Judicial notice; o Part 4.3: Facilitation of proof. To order the complete version of the lawskool Evidence Law Summary please visit www.lawskool.com.au 4 P Nygh and P Butt (general editors) Butterworths Concise Australian Legal Dictionary. Second edition, 1998. 5 P Nygh and P Butt (general editors) Butterworths Concise Australian Legal Dictionary. Second edition. 1998. lawskool.com.au 10